ICE agents can wear masks in New York, federal judge rules

New York State is prohibited from unmasking U.S. Immigration and Customs Enforcement agents but can restrict local law enforcement, including in Nassau County, from participating in federal civil immigration actions, a federal judge said Monday.

In a 51-page decision, U.S. District Judge Mae D’Agostino, of the Northern District of New York, granted the Justice Department’s request for a preliminary injunction that will prevent the state from enforcing its recently enacted face covering and identification acts. However, D’Agostino denied the federal government's request to halt the state's Local Cops Local Crimes Act, which, beginning Aug. 25, will restrict local law enforcement and jails from aiding ICE agents through what is known as 287(g) arrangements.

The Nassau County police and sheriff’s departments, along with other local agencies in the state, began partnering with ICE through 287(g) agreements shortly after President Donald Trump began his second term in the White House, Newsday has reported. In May, Gov. Kathy Hochul signed a bill package barring local police departments from aiding civil federal immigration cases. She also prohibited federal agents operating in the state from wearing select face coverings and ordered them to display their name, badge number or some other sort of identifying information.

New York "appears to be well-intentioned in its pursuit of transparent policing," and the state’s argument for a mask ban "is grounded in unavoidable observations of recent troubling events which loom darkly over the public perception of the manner in which federal immigration law is enforced," D’Agostino said in her decision.

"However, the issue now before the Court is about constitutionality — not transparency or preferable policy decisions," D’Agostino added. "Whether federal law enforcement agencies have chosen to carry out such operations in a sufficiently transparent manner is an important question. But that question is not for this Court to answer at the present time."

Although the court halted New York’s ICE identification law, "we stand firm in our belief that masked agents do not make New York safer and our offices are reviewing all legal options at this time," Hochul and state Attorney General Letitia James said in a joint statement issued Monday. In another joint statement, the two elected officials acknowledged D’Agostino’s ruling in their favor.

"As we have said from the start, New York’s ban on 287(g) agreements is legal and will keep our communities safe," Hochul and James said. "Local law enforcement should be focused on local matters, and New York taxpayers should not have to foot the bill for any collaboration with ICE."

In a text message via his spokesperson, Chris Boyle, a spokesman for Nassau County Executive Bruce Blakeman, who is the Republican challenger to Hochul in November, said she "is the most pro-criminal governor in the United States and every law, rule, and regulation she promulgates makes it easier for criminals to operate and pray on our communities in New York State."

In a statement emailed to Newsday late Monday, James Percival, general counsel for the U.S. Department of Homeland Security, which oversees ICE, said: “Blue states continue to stack losses as they try to pass unconstitutional bans on ICE officers wearing masks.”

While New York can bar local police officers from shrouding their identities, the federal government does not have to conform to the state’s regulations, D’Agostino said. Although the state "may be correct that federal immigration officers wearing masks and not displaying viable identification creates certain dangerous situations," the judge determined that "New York cannot impose its own uniform requirements on federal agents simply because it disagrees with how the Federal Government is exercising its authority."

The judge also decided the state’s ban on 287(g) agreements was an "exercise of New York's police powers, aimed at protecting public safety and local law enforcement resources." She added the law "is an appropriate means of furthering New York's legitimate interests in protecting public welfare and choosing how state and local resources are expended."